Chicken Little…and Falling Skies?

Posted on June 10, 2014 by David Tripp

On March 27, 2014, the U.S. Fish and Wildlife Service announced its intention to list the Lesser Prairie Chicken (Tympanuchus Pallidicinctus) as a threatened species under the Endangered Species Act. The diminutive LPC is a member of the grouse family, shorter than its close cousin the Greater Prairie Chicken by about one inch. Known for its colorful garb and ritualistic mating dances (jokingly referred to by one biologist as "Spring Break for Chickens"), the LPC population and habitat have declined significantly over the last decade in five states, according to surveys by FSW and state agencies.

Prior to the FWS listing, a voluntary LPC Range-Wide Conservation Plan was proposed by the fish and wildlife agencies of Texas, Oklahoma, Kansas, Colorado and New Mexico. These agencies of the five states with LPC habitat created the Western Area Fish and Wildlife Authority, or WAFWA. Two days before the FWS listing, WAFWA announced that 32 oil and gas, power transmission, and wind energy companies had committed to enroll more than 3.6 million acres in its LPC range-wide conservation plan, providing about $21 million for habitat conservation over 3 years. Despite this effort by WAFWA, the FWS listing went forward.

Is the sky falling for landowners and other parties operating in the LPC habitat areas designated by FWS? Clearly there will be limitations on land use; particularly in the high-priority areas where surveys have shown the presence of "leks" where the LPC gather to mate, or other areas of primary habitat activity. Companies in oil and gas, pipeline, electric transmission, wind energy and other sectors can enroll in the WAFWA program, pay a one-time fee and follow guidelines to minimize unavoidable impacts on the LPC and its habitat.

By participation in the WAWFA range-wide plan, these enrolled companies become a party to a Candidate Conservation Agreement with Assurances. This CCAA provides for protection for "incidental take" of the LPC or its habitat which may occur during operations, including emergency repairs to pipelines, electric transmission lines or similar activities.

However, for "Little Guy" or "Mom and Pop" operations, the picture is not so clear. A ranch or farm operation or a small, independent oil and gas producer or developer may face the need for individual permits from FWS or enrollment in the Natural Resources Conservation Service LPC Initiative. Protective assurances may be given in return for per-acre fees of up to $2.25/acre for oil and gas operations, and in the example of ranch operations, NRCS terms may limit grazing by cattle to no more than once in each five years.

Concerns over these land use limitations and the uncertainty regarding FWS penalties and enforcement policies for incidental take of the LPC or its habitat leave many small farm and ranch operators or oil and gas companies feeling they are under surveillance by mysterious forces, subject to sanctions they do not fully understand, with little power to resist. As a result, some oil and gas companies are abandoning plans to develop existing leases within the habitat areas and are not seeking new leases. Even oil and gas companies who are enrolled in the Rangewide Plan are struggling to understand how to operate moving forward. Land values will be impacted in the habitat areas when ranchers and farmers can find safer ground outside the LPC boundaries. While the LPC and its habitat now are better protected, it is not without cost and anxiety for humans living in the same area.

The Six Month Extension for a Listing Determination of the Lesser Prairie Chicken and Relevant Considerations Moving Forward

Posted on August 13, 2013 by Donald Shandy

The status of the Lesser Prairie Chicken has received a lot of attention over the last two years, but those affected by a listing decision will have to wait another six months to know whether the notorious bird will receive protection under the Endangered Species Act.  As part of a comprehensive settlement agreement in the case of In re Endangered Species Act Section 4 Deadline Litigation 2011, the U.S. Fish and Wildlife Service (“FWS”) agreed to make listing determinations under the Endangered Species Act (“ESA”) for more than 250 species by the end of 2016.  Pursuant to this agreement, on December 11, 2012, the FWS published its proposal to list the LPC as a threatened species under the Act, with a final determination to be made by September 30, 2013.  However, on July 9, 2013, the FWS announced a six month extension on the final listing determination, under an ESA provision that allows the agency to postpone decisions where there is significant scientific disagreement regarding the sufficiency or accuracy of the available data relating to the decision. In its notice, the FWS noted that it will solicit information to clarify and fully analyze issues raised during the initial comment period. These issues include whether the FWS has considered the effectiveness of conservation practices of the oil and gas industry and the agricultural industry, and the accuracy of short-term and long-term population trends of the LPC, particularly as it relates to climate change. 

Moreover, the FWS reopened the comment period for an additional thirty days.  Among other things, the FWS specifically requests comments on the application of the Lesser Prairie-Chicken Interstate Working Group’s draft rangewide conservation plan, developed in conjunction with the states of Kansas, Oklahoma, Colorado, Texas, and New Mexico to preserve LPC habitat and increase the LPC population.  Over the six month period, the FWS will obtain additional information and achieve better clarity on these and other issues prior to the final listing decision on March 30, 2014.  Until then, voluntary efforts to support the species’ population are sure to continue in full force, with the goal of helping the LPC population recover to the point where the protections of the ESA are not necessary.

Last Dance / Last Chance…?

Posted on March 8, 2013 by LeAnne Burnett

Is the Lesser Prairie Chicken (“LPC”) dancing its last dance?  The little grouse, noted for stomping its feet and inflating the bright orange air sacs at the side of its neck, while emitting an eerie “booming” sound that echoes across the short grass prairie, has seen its numbers drop sharply in recent years.  On November 30, 2012, the U.S. Fish and Wildlife Service ("USFWS") proposed listing the LPC as "threatened" under the Endangered Species Act of 1973 ("Act").  Read Donald Shandy's December 13 post on possible impacts of the listing on the energy industry.  The LPC 's range, includes tens of thousands of acres in Oklahoma, Texas, New Mexico, Colorado and Kansas.

The Act prohibits all activities that would harm ("take") a species listed as endangered, unless the activities are otherwise exempted or permitted by the USFWS.  For threatened species, Section 4(d) of the Act gives the USFWS authority to tailor the take prohibitions to the particular conservation needs of the species.  Typically, that tailoring involves addressing habitat preservation.  Habitat fragmentation, modification and degradation within the species' range are the major threats to the LPC.  Historic agricultural and livestock grazing land use, and more recent land uses related to wind energy, transmission development, and oil and gas production present challenges to the LPC.  Uncontrollable forces, such as the persistent drought in the area, also impact the LPC’s habitat. 

For more than a decade impacted stakeholders have created and used voluntary tools to implement conservation actions that preserve the LPC’s range hoping to avoid a listing.  A Candidate Conservation Agreement ("CCA") is a voluntary conservation agreement with the USFWS to identify and implement measures designed to address threats to the candidate species.  Candidate Conservation Agreements with Assurances ("CCAAs") provide non-federal landowners with assurances that, as long as the landowners continue habitat conservation efforts, they will not be asked to undertake more than the agreed-upon conservation measures even if the candidate species is later listed or the CCAA is later modified.  The USFWS recently approved a CCAA for Oklahoma which is available through the Oklahoma Department of Wildlife.  The CCAA is free and voluntary, not dependent on the presence of LPCs on the enrolled property, and landowners may opt out at any time

CCAs and CCAAs may help avoid the listing, but if the LPC is listed, then the conservation measures undertaken through these agreements are already tailored to the particular conservation needs of the species and can become Section 4(d) requirements.  Either way, enrolling in voluntary programs and taking advantage of the opportunity to provide public comment and new ideas for preservation of the LPC may allow the LPC to keep on dancing.

The Recent Proposal to List the Lesser Prairie Chicken as Threatened and the Effect of a Final Listing on the Energy Industry

Posted on December 13, 2012 by Donald Shandy

On November 30, 2012, the United States Fish and Wildlife Service (“FWS”) announced its proposal to list the Lesser Prairie Chicken (“LPC”) as threatened under the Endangered Species Act (“ESA”).  The proposed rule resulted from a comprehensive 2011 settlement agreement approved by the D.C. Circuit in In re Endangered Species Act Section 4 Deadline Litigation 2011, whereby FWS agreed to review over 250 candidate species and make a determination as to each species whether to issue a proposed listing rule or to issue a finding that the listing is not warranted, over a six-year period.  Under the ESA, an endangered species is one that is in danger of extinction throughout all or a significant portion of its range, while a threatened species is likely to become endangered within the foreseeable future.  FWS will make a final determination on whether to list the LPC as threatened by September 30, 2013. 

The LPC is found across a five-state span, including Colorado, Oklahoma, New Mexico, Texas, and Kansas. Activities identified by FWS as threats to the species include habitat loss, fragmentation, modification, and degradation within the species’ range.  Other threats include land uses related to wind energy and transmission development.  If FWS ultimately lists the LPC as a threatened species, energy industry operations that could potentially harm the species would be affected.  Specifically, due to the species’ avoidance of tall, vertical objects, FWS has identified oil and gas wellheads and wind turbines as features that may cause habitat displacement for the bird.  Section 9 of the ESA prohibits the “take” of a listed wildlife species by a private or public entity.  Because “take” is defined quite broadly under the ESA, even activities that are not designed or intended to harm a species, but could do so indirectly, such as operation of these tall structures, could potentially constitute a violation.

Unlike endangered species, in regard to a species listed as threatened, FWS has the authority under ESA Section 4(d) to tailor the “take” prohibitions to the conservation needs of the species. The FWS may use its Section 4(d) authority to incentivize participation in conservation plans that will support recovery of the LPC.  Additionally, there are conservation plans that may be entered into by energy companies before a species is listed under the ESA.  Called Candidate Conservation Agreements with Assurances (“CCAAs”), these agreements, allow non-federal property owners to commit to implement voluntary conservation measures for a candidate species in return for regulatory assurances that additional conservation measures will not be required, and additional land, water, or resource use restrictions will not be imposed, should the species become listed in the future.  Furthermore, the proactive conservation efforts performed through CCAAs may remove or reduce threats to the covered species, so that listing the species under the ESA may become unnecessary.  CCAAs, therefore, provide a significant opportunity for a compliant energy company to potentially insulate itself from liability in the event the LPC is listed as threatened.  CCAAs have been developed for the LPC in New Mexico and Texas, and Oklahoma, under the leadership of the Oklahoma Department of Wildlife Conservation, has submitted a CCAA to FWS for review.  Notably, because the final listing determination for the LPC must be made September 30, 2013, time is of the essence for energy companies to consider entering into a CCAA.

See the FWS’s Proposed Listing
See the FWS’s News Release Regarding the Proposed Listing
See the FWS’s Facts Regarding the Proposed Listing